I received this question from a Director of a First Aid and Emergency Response Training company in Central Queensland.  My correspondent writes:

I have had questions from our trained first aider about whether they are covered if they render first aid and something goes horribly wrong.

I have been researching and have found nothing that is concrete for our normal everyday mums and dads that are trained in First Aid.  There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.

I have found an association of first aiders in the UK that seem to be supporting First Aid in some way.  What do we need to do to have something in place that covers our front line first aiders?

I look forward to any assistance that you can provide and I will eagerly await your response.

Nearly all Australian states and territories have in place good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions provided they act in good faith (Civil Laws (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 57; Personal Injuries (Liabilities and Damages) Act (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) s 35B; Wrongs Act 1958 (Vic) s 31B; Civil Liability Act 2002 (WA) s 5AD).

These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said:

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).

Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability.

The exception is Queensland. Queensland has the Law Reform Act 1995 (which replaces the Voluntary Aid in Emergency Act 1973). This Act (as did the 1973 Act) provides that a medical practitioner, a nurse or a member of an organisation listed in the regulations is not liable for acts done in good faith and without gross negligence. There are no regulations (and so no prescribed organisations) under the Law Reform Act 1995, but the Civil Liability Act 2003 (Qld) also provides legal protection for people who provide first aid as part of their duties as a member of an organisation listed in the regulation (s 26) and the organisation is also protected (s 27).   The list of protected organisations is set out in the Civil Liability Regulation 2014 (Qld) schedules 1 and 2.

So my correspondent is correct, in Queensland there is no legal protection

… for our normal everyday mums and dads that are trained in First Aid.  There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.

But remember the Ipp Review said no such protection was necessary.   Taking into account the circumstances in which first aid is rendered and the care that can be expected the risk of ‘…normal everyday mums and dads that are trained in First Aid’ being sued, even if ‘something goes horribly wrong’ is so remote that it’s what we lawyers might call ‘far fetched and fanciful’.   It is still the case that there is no reported ‘Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent’. Remember also that Queensland is the State that has had the oldest piece of good Samaritan type legislation in the Voluntary Aid in Emergency Act 1973 and even though that Act (like the 1995) Act was limited in its application to doctors and nurses, there are no reported cases where it’s ever been relied upon. No-one has ever raised it as a defence, now that may be because potential plaintiffs knew it was there and didn’t bother bringing an action, but a more likely explanation is because people just don’t get sued in these circumstances.

People don’t get sued in these circumstances as they will not be under a duty to attend ie there is no duty to rescue, even if you’re trained in first aid (Stuart v Kirkland-Veenstra (2009) 237 CLR 215); if they do provide first aid the standard of care is to act reasonably in all the circumstances which includes the nature of the emergency and their training and what can be expected of someone who perhaps has done two day course sometime in the last three years. In an emergency the courts are very generous to the fact that a person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise. (Leishman v Thomas (1958) 75 WN(NSW) 173 at 175).

In these circumstances the good Samaritan’s duty isn’t to ensure a good outcome; ‘If he volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse’ (Capital and Counties v Hampshire County Council [1997] 2 All ER 865).

But back to the question of ‘What do we need to do to have something in place that covers our front line first aiders?’ The answer to that depends on what is meant by ‘we’. If ‘we’ is the broader Australian community then everyone, other than those in Queensland, have that protection. To provide that protection in Queensland what ‘we’ need to do is lobby the state government to amend the Civil Liability Act 2003 (Qld) to include a good Samaritan provision that mirrors the legislation in every other state and territory.

If, on the other hand, ‘we’ means my correspondent’s First Aid and Emergency Response Training company then they too can lobby their local MP or they could try to find an insurance company that was willing to offer insurance to be sold to those who do a first aid course. I recall some years ago St John Ambulance (NSW) did offer an insurance policy for a small premium on top of the course fees but I’ve not heard of that in recent times so I assume that is no longer available.

Providing indemnity cover for ‘normal everyday mums and dads that are trained in First Aid’ would be a good risk for an insurance company – they can get the premium to cover a risk that is virtually non-existent. Insurance could however change the risk. One-thing lawyers understand is that litigation for negligence is about the money, courts can offer nothing else but money so there is no value in suing someone who does not have money to pay the claimed damages. That’s one thing that protects ‘normal everyday mums and dads that are trained in First Aid’, apart from almost insurmountable legal difficulties they’re not worth suing. Any injured person would look to a more financial defendant, eg the defendant that caused the accident, the hospital or state ambulance service etc. If, however, there was insurance, that would mean that there is someone behind the first aider with the funds to pay any damages and costs. That could change the risk. In that case the plaintiff’s ‘gamble’ of taking action has better odds so the perverse result of advocating for first aid insurance could be that, rather than protecting first aiders, it increases the risk that they could be sued. The risk of legal action would remain small for the legal reasons mentioned above, but it is something to consider.